act-2007-0-68•Pennsylvania Act 2007-68 — ENVIRONMENTAL RESOURCES (27 PA.C.S.) - UNIFORM ENVIRONMENTAL COVENANTS
Pennsylvania Act 2007-68 — ENVIRONMENTAL RESOURCES (27 PA.C.S.) - UNIFORM ENVIRONMENTAL COVENANTS
act-2007-0-682007 Pa. Act 68Law
Act text
ENVIRONMENTAL RESOURCES (27 PA.C.S.) - UNIFORM ENVIRONMENTAL COVENANTS
Act of Dec. 18, 2007, P.L. 450, No. 68 Cl. 27
Session of 2007
No. 2007-68
HB 43
AN ACT
Amending Title 27 (Environmental Resources) of the Pennsylvania
Consolidated Statutes, providing for uniform environmental
covenants.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 27 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 65
UNIFORM ENVIRONMENTAL COVENANTS
Sec.
6501. Short title of chapter.
6502. Definitions.
6503. Nature of rights; subordination of interests.
6504. Contents of environmental covenant.
6505. Validity.
6506. Relationship to other land-use law.
6507. Notice.
6508. Recording.
6509. Duration.
6510. Amendment or termination by consent.
6511. Enforcement of environmental covenant.
6512. Registry; substitute notice.
6513. Uniformity of application and construction.
6514. Relation to Electronic Signatures in Global and National
Commerce Act.
6515. Environmental Quality Board.
6516. Appealable actions.
6517. Relationship to other laws.
§ 6501. Short title of chapter.
This chapter shall be known and may be cited as the Uniform
Environmental Covenants Act.
§ 6502. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Activity and use limitations." Restrictions or obligations
with respect to real property created under this chapter. The
term includes engineering controls and institutional controls.
"Agency." Any of the following:
(1) The Department of Environmental Protection of the
Commonwealth.
(2) A Federal agency which determines or approves the
environmental response project pursuant to which the
environmental covenant is created.
"Board." The Environmental Hearing Board.
"Common interest community." A condominium, cooperative or
other real property, with respect to which a person, by virtue
of ownership of a parcel of real property or of ownership of an
interest in real property, is obligated to pay for property
taxes, insurance premiums, maintenance or improvement of other
real property described in a recorded covenant which creates the
common interest community.
"Department." The Department of Environmental Protection of
the Commonwealth.
"Engineering controls." Remedial actions directed
exclusively toward containing or controlling the migration of
regulated substances through the environment. The term includes
slurry walls, liner systems, caps, leachate collection systems
and groundwater recovery trenches.
"Environmental covenant." A servitude arising under an
environmental response project which imposes activity and use
limitations.
"Environmental response project." A plan or work performed
for environmental remediation of real property, conducted:
(1) under a Federal program governing environmental
remediation of real property;
(2) under a Commonwealth program governing environmental
remediation of real property;
(3) incident to closure of a solid or hazardous waste
management unit if the closure is conducted with approval of
an agency; or
(4) under a Commonwealth voluntary cleanup program
authorized by statute.
"Holder." A person that is the grantee of an environmental
covenant as specified in section 6503(a) (relating to nature of
rights; subordination of interests).
"Institutional controls." Measures undertaken to limit or
prohibit certain activities which may interfere with the
integrity of a remedial action or result in exposure to
regulated substances at a site. The term includes fencing and
restrictions on the future use of the site.
"Land Recycling Act." The act of May 19, 1995 (P.L.4, No.2),
known as the Land Recycling and Environmental Remediation
Standards Act.
"Person." Any individual, corporation, partnership,
association or other entity recognized by law as the subject of
rights, duties or obligations. The term includes the United
States of America, a Federal agency, the Commonwealth, an agency
or instrumentality of the Commonwealth and a political
subdivision.
"Record." Information which is:
(1) inscribed on a tangible medium or stored in an
electronic or other medium; and
(2) retrievable in perceivable form.
"State." A state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands or any
territory or insular possession subject to the jurisdiction of
the United States.
§ 6503. Nature of rights; subordination of interests.
(a) Nature.--Any person, including a person that owns an
interest in the real property, or an agency may be a holder. An
environmental covenant may identify more than one holder. The
interest of a holder is an interest in real property.
(b) Rights of agency.--The rights of an agency under this
chapter or under an approved environmental covenant, other than
as a holder, are not interests in real property.
(c) Obligations.--An agency is bound by any obligation it
assumes in an environmental covenant, but an agency does not
assume obligations merely by signing an environmental covenant.
Any person other than an agency that signs an environmental
covenant is bound by the obligations the person assumes in the
covenant, but signing the covenant does not change obligations,
rights or protections granted or imposed under law other than
this chapter except as provided in the environmental covenant.
(d) Rules.--The following rules apply to interests in real
property in existence at the time an environmental covenant is
created or amended:
(1) An interest which has priority under law other than
this chapter is not affected by an environmental covenant
unless the owner of the interest subordinates its interest to
the covenant.
(2) As a condition to approval of an environmental
covenant an agency may require that an owner of a prior
interest subordinate that interest to the environmental
covenant.
(3) A subordination agreement may be contained in an
environmental covenant covering real property or in a
separate record. If the environmental covenant covers
commonly owned property in a common interest community, the
agreement or record may be signed by any person authorized by
the governing board of the owners association.
(4) An agreement by a person to subordinate a prior
interest to an environmental covenant affects the priority of
that person's interest but does not by itself impose an
affirmative obligation on the person with respect to the
environmental covenant nor affect that person's existing
environmental liability.
§ 6504. Contents of environmental covenant.
(a) Required information.--An environmental covenant must:
(1) state that the instrument is an environmental
covenant executed pursuant to this chapter;
(2) contain a legally sufficient description of the real
property subject to the environmental covenant;
(3) contain a brief narrative description of the
contamination and the remedy;
(4) describe the activity and use limitations on the
real property;
(5) identify every holder;
(6) be signed, with the formalities required for a deed,
by:
(i) the agency, unless there is a deemed approval
under subsection (c)(4);
(ii) every holder; and
(iii) every owner in fee simple of the real property
subject to the environmental covenant, unless waived by
the agency; and
(7) identify the name and location of any administrative
record for the environmental response project reflected in
the environmental covenant.
(b) Permitted information.--In addition to the information
required by subsection (a), an environmental covenant may
contain other information, restrictions and requirements agreed
to by the persons who signed it, including:
(1) requirements for notice following transfer of a
specified interest in, or concerning proposed changes in use
of, applications for building permits for or proposals for
any site work affecting the contamination on the property
subject to the environmental covenant;
(2) requirements for periodic reporting describing
compliance with the environmental covenant;
(3) rights of access to the property granted in
connection with implementation or enforcement of the
environmental covenant;
(4) restriction or limitation on amendment or
termination of the environmental covenant in addition to
those contained in sections 6509 (relating to duration) and
6510 (relating to amendment or termination by consent);
(5) rights of the holder in addition to its right to
enforce the environmental covenant under section 6511
(relating to enforcement of environmental covenant); and
(6) a narrative description of the contamination and
remedy, including the contaminants of concern, the pathways
of exposure, limits on exposure and the location and extent
of the contamination.
(c) Agency.--
(1) Prior to signing a covenant, an agency may review
the covenant and provide its conditions for approval.
(2) In addition to other conditions for its approval of
an environmental covenant, an agency may require those
persons specified by the agency that have interests in the
real property to sign the covenant.
(3) Except as set forth in paragraph (4), signature by
an agency on an environmental covenant constitutes its
approval of the environmental covenant.
(4) Failure of the department to approve or disapprove
an environmental covenant within 90 days of receipt of all
information reasonably required by the department to make a
determination shall be deemed an approval of the
environmental covenant.
(5) The department's decision to approve or not approve
an environmental covenant is appealable to the board.
§ 6505. Validity.
(a) Nature.--An environmental covenant which complies with
this chapter runs with the land.
(b) Impediments excluded.--An environmental covenant which
is otherwise effective is valid and enforceable even if:
(1) it is not appurtenant to an interest in real
property;
(2) it can be or has been assigned to a person other
than the original holder;
(3) it is not of a character that has been recognized
traditionally at common law;
(4) it imposes a negative burden;
(5) it imposes an affirmative obligation on a person
having an interest in the real property or on the holder;
(6) the benefit or burden does not touch or concern real
property;
(7) there is no privity of estate or contract;
(8) the holder dies, ceases to exist, resigns or is
replaced; or
(9) the persons identified as owner and holder in the
environmental covenant are the same person.
(c) Prior instruments.--
(1) An instrument which creates restrictions or
obligations with respect to real property which would, except
for the fact that the instrument was recorded before the
effective date of this chapter, qualify as activity and use
limitations is not invalid or unenforceable:
(i) by reason of the limitations on enforcement of
interests described in subsection (b); or
(ii) because it was identified as an easement,
servitude, deed restriction or other interest.
(2) This chapter does not apply in any other respect to
an instrument referred to in paragraph (1).
(d) Other interests.--
(1) This chapter does not invalidate or render
unenforceable any interest, whether designated as an
environmental covenant or other interest, which is otherwise
enforceable under the laws of this Commonwealth.
(2) Nothing in this chapter shall be construed to
restrict, affect or impair the rights of any person to enter
into or record a restrictive covenant, institution control,
easement, servitude or other restriction on the use of
property permitted by law that does not satisfy the
requirements of this chapter and does not have the
permission, approval or consent of an agency, a political
subdivision, a regulatory body or another unit of government.
However, a restrictive covenant, institutional control,
easement, servitude or other restriction on the use of
property that does not satisfy the requirements of this
chapter and does not have such permission, approval or
consent is not subject to this chapter.
§ 6506. Relationship to other land-use law.
(a) Effect on unauthorized uses.--This chapter does not
authorize a use of real property which is otherwise prohibited
by:
(1) zoning;
(2) law other than this chapter regulating use of real
property; or
(3) a recorded instrument which has priority over the
environmental covenant.
(b) Effect on authorized uses.--An environmental covenant
may prohibit or restrict uses of real property which are
authorized by zoning or by law other than this chapter.
§ 6507. Notice.
(a) Recipients.--The owner or another person designated by
the agency shall provide a copy of a signed environmental
covenant as required by the agency to:
(1) all persons who signed the environmental covenant;
(2) all persons holding a recorded interest in the real
property subject to the environmental covenant;
(3) all persons in possession of the real property
subject to the environmental covenant;
(4) each political subdivision in which real property
subject to the environmental covenant is located; and
(5) any other persons the agency requires.
(b) Effect.--Failure to provide a copy of the environmental
covenant as required by the agency does not affect the
environmental covenant's validity.
§ 6508. Recording.
(a) Requirement.--An environmental covenant, any amendment
or termination of the environmental covenant and a waiver under
section 6510(a)(3)(i) or (b)(2) (relating to amendment or
termination by consent) must be recorded in every county in
which any portion of the real property subject to the
environmental covenant is located. A recorded environmental
covenant or a notice recorded under section 6512 (relating to
registry; substitute notice) must be indexed in the grantor's
index in the names of the owners of the real property subject to
the environmental covenant and in the grantee's index in the
name of the holder.
(b) Applicable law.--Except as otherwise provided in section
6509(c) (relating to duration), an environmental covenant is
subject to the laws of this Commonwealth governing recording and
priority of interests in real property. Recording of an
environmental covenant pursuant to the laws of this Commonwealth
provides the same constructive notice of the environmental
covenant as the recording of a deed provides of an interest in
real property.
§ 6509. Duration.
(a) Perpetual.--An environmental covenant is perpetual
unless one of the following applies:
(1) It is limited by its terms to a specific duration or
the occurrence of a specific event.
(2) It is terminated by consent under section 6510
(relating to amendment or termination by consent).
(3) It is terminated under subsection (b).
(4) It is terminated by foreclosure of an interest which
has priority over the environmental covenant.
(5) It is terminated or modified by judicial decree in
an eminent domain proceeding, but only if:
(i) the agency which signed the environmental
covenant consents to the judicial action;
(ii) all persons identified in section 6510(a) and
(b) are given notice of the pendency of the eminent
domain proceeding; and
(iii) the court determines, after hearing, that the
termination or modification will not adversely affect
human health or the environment.
(b) Judicial modification.--A court, in an action in which
all persons identified in section 6510(a) and (b) have been
given notice, may terminate or modify the environmental covenant
on the real property subject to the environmental covenant if
any of the following apply:
(1) The agency which signed an environmental covenant
has determined that:
(i) the intended benefits of the environmental
covenant can no longer be realized; or
(ii) changed circumstances indicate that the
intended benefits can only be realized through
modification of the environmental covenant.
(2) A standard allowing for a reopener of a completed
environmental response project under section 505 of the Land
Recycling Act is met.
(c) Other modifications.--Except as otherwise provided in
subsection (a) or (b), an environmental covenant may not be
extinguished, limited or impaired through:
(1) issuance of a tax deed;
(2) foreclosure of a tax lien; or
(3) application of the doctrine of adverse possession,
prescription, abandonment, waiver, lack of enforcement or of
a similar doctrine.
§ 6510. Amendment or termination by consent.
(a) Signature.--An environmental covenant may be amended or
terminated by consent only if the amendment or termination is
signed by all of the following:
(1) The agency.
(2) Unless waived by the agency, the current owner in
fee simple of the real property subject to the environmental
covenant.
(3) Each person that originally signed the environmental
covenant or that person's successor in interest unless:
(i) the person waived the right to consent in a
signed record; or
(ii) a court finds that the person no longer exists
or cannot be located or identified with the exercise of
reasonable diligence.
(4) Except as otherwise provided in subsection (d)(2),
the holder.
(b) Effect upon property interests subject to environmental
covenants.--If an interest in real property is subject to an
environmental covenant, the interest is not affected by an
amendment of the covenant unless the current owner of the
interest:
(1) consents to the amendment; or
(2) has waived in a signed record the right to consent
to the amendment.
(c) Effect of assignment.--Except for an assignment
undertaken pursuant to a governmental reorganization, assignment
of an environmental covenant to a new holder is an amendment.
(d) Assignment requirements.--Except as otherwise provided
in the environmental covenant:
(1) a holder may not assign its interest without consent
of the other parties;
(2) a holder may be removed and replaced by agreement of
the other parties specified in subsection (a); and
(3) a court of competent jurisdiction may fill a vacancy
in the position of holder.
§ 6511. Enforcement of environmental covenant.
(a) Parties.--A civil action for injunctive or other
equitable relief for violation of an environmental covenant may
be maintained by:
(1) a party to the environmental covenant;
(2) the agency or, if it is not the agency, the
department;
(3) any other person to whom the environmental covenant
expressly grants power to enforce;
(4) a person whose interest in the real property or
whose collateral or liability may be affected by the alleged
violation of the environmental covenant; and
(5) a political subdivision in which the real property
subject to the environmental covenant is located.
(b) Regulatory authority.--
(1) This chapter does not limit the regulatory authority
of the agency or the department under law other than this
chapter.
(2) In addition to bringing an action under subsection
(a), the department may issue any order necessary to enforce
section 6517(b) (relating to relationship to other laws).
(c) Liability.--A person is not subject to liability for
environmental remediation solely because the person has the
right to enforce an environmental covenant.
§ 6512. Registry; substitute notice.
(a) Registry.--The department shall establish and maintain a
registry which contains all environmental covenants and any
amendment or termination of those covenants. The registry may
also contain any other information concerning environmental
covenants and the real property subject to them which the
department considers appropriate. The registry is a public
record for purposes of the act of June 21, 1957 (P.L.390,
No.212), referred to as the Right-to-Know Law.
(b) Notice.--After an environmental covenant or an amendment
or termination of an environmental covenant is filed in the
registry under subsection (a), a notice of the environmental
covenant, amendment or termination which complies with this
section may be recorded in the land records in lieu of recording
the entire environmental covenant. The notice must contain:
(1) a legally sufficient description and any available
street address of the real property;
(2) the name and address of the owner in fee simple of
the interest in the real property, the agency and the holder
if other than the agency;
(3) a brief narrative description of the contamination
and the remedy;
(4) a statement that the environmental covenant,
amendment or termination is available in a registry at a
listed address of the department and a disclosure of the
method of any electronic access; and
(5) a statement that the notice is notification of an
environmental covenant executed under this chapter.
(c) Sample form.--A statement in substantially the following
form, executed with the same formalities as a deed, satisfies
the requirements of subsection (b):
(1) This notice is filed in the land records of the
(insert the name of the county in this Commonwealth in which
the property is located) of Pennsylvania pursuant to 27
Pa.C.S. § 6512.
(2) This notice and the covenant, amendment or
termination to which it refers may impose significant
obligations with respect to the property described below.
(3) A legal description of the property is attached as
Exhibit A to this notice. A brief narrative description of
the contamination and the remedy is attached as Exhibit B to
this notice. The address of the property that is subject to
the environmental covenant is (insert address of property)
(not available).
(4) The name and address of the owner of the fee simple
interest in the real property on the date of this notice is
(insert name of current legal owner of the property and the
owner's current address as shown on the tax records of the
county in which the property is located).
(5) The environmental covenant, amendment or termination
was signed by (insert name and address of the agency).
(6) The environmental covenant, amendment or termination
was filed in the registry on (insert date of filing).
(7) The full text of the covenant, amendment or
termination and any other information required by the agency
is on file and available for inspection and copying in the
registry maintained for that purpose by the Department of
Environmental Protection at (insert address and room of
building in which the registry is maintained). The covenant,
amendment or termination may be found electronically at
(insert web address for covenant).
§ 6513. Uniformity of application and construction.
In applying and construing this chapter as a uniform act,
consideration must be given to the need to promote uniformity of
the law with respect to its subject matter among states which
enact it.
§ 6514. Relation to Electronic Signatures in Global and
National Commerce Act.
(a) General rule.--Except as set forth in subsection (b),
this chapter modifies, limits or supersedes the Electronic
Signatures in Global and National Commerce Act (Public Law 106-
229, 15 U.S.C. § 7001 et seq.).
(b) Exceptions.--
(1) This chapter does not modify, limit or supersede
section 101(a) of the Electronic Signatures in Global and
National Commerce Act (15 U.S.C. § 7001(a)).
(2) This chapter does not authorize electronic delivery
of any of the notices described in section 103(b) of the
Electronic Signatures in Global and National Commerce Act (15
U.S.C. § 7003(b)).
§ 6515. Environmental Quality Board.
(a) Regulations.--The Environmental Quality Board has the
power and duty to promulgate regulations for the proper
performance of work of the department under this chapter. This
subsection includes the establishment of fees under this
chapter.
(b) Fees.--Fees under subsection (a) shall be deposited into
the Industrial Land Recycling Fund.
§ 6516. Appealable actions.
Actions of the department under this chapter shall be
considered appealable actions under the act of July 13, 1988
(P.L.530, No.94), known as the Environmental Hearing Board Act.
§ 6517. Relationship to other laws.
(a) Prospective environmental response projects.--
(1) Unless waived by the department, engineering
controls or institutional controls required to demonstrate
attainment of a remediation standard under the Land Recycling
Act or the act of July 6, 1989 (P.L.169, No.32), known as the
Storage Tank and Spill Prevention Act, shall be in the form
of an environmental covenant.
(2) If a deed acknowledgment is required by section 405
of the act of July 7, 1980 (P.L.380, No.97), known as the
Solid Waste Management Act, or section 512(b) of the act of
October 18, 1988 (P.L.756, No.108), known as the Hazardous
Sites Cleanup Act, the requirement may be satisfied by
reference to an environmental covenant recorded pursuant to
this chapter.
(3) An environmental covenant shall not be required for
property owned by the Federal Government prior to transfer of
the property to a non-Federal entity or individual. Activity
and use limitations on Federal property shall be incorporated
into an installation's master plan or other similar and
appropriate remedial documentation. Nothing in this paragraph
shall limit any authority otherwise available to the
department to enforce terms of an environmental response
project at a Federal installation or on property owned by the
Federal Government.
(b) Conversion to environmental covenant.--
(1) An instrument created prior to the effective date of
this section which establishes activity and use limitations
to demonstrate attainment or maintenance of a standard under
the Land Recycling Act or to demonstrate satisfaction of a
corrective action requirement under the Storage Tank and
Spill Prevention Act shall be converted to an environmental
covenant within 60 months of the effective date of this
section unless conversion is waived by the department.
(2) Failure to comply with this subsection does not
invalidate the existing engineering controls and
institutional controls described in paragraph (1) or preclude
the conversion of those engineering controls and
institutional controls to an environmental covenant at a
later date.
Section 2. This act shall take effect in 60 days.
APPROVED--The 18th day of December, A. D. 2007.
EDWARD G. RENDELL
Poursuivez vos recherches dans ChatGPT ou Claude
Connectez Omnilex pour rechercher dans le corpus juridique depuis votre assistant IA.